Law of Wills, 2016A

each will, Vencie and Melba gave “the rest and residue” of their estates to their respective spouses.
That paragraph further provided that if the spouse did not survive the testator by ninety days,
Beverly Kaye Gilmore and Janet Lea Hopkins would receive the residuary estate.
Stephens sought a declaration as to whether Vencie and Melba died in a common disaster or under
circumstances making it impossible to determine which of them died first. She also wanted a
determination of the amounts of the cash bequests the nine individuals were to receive under the
wills. She named as defendants the beneficiaries under the wills, Brandon Scott Beard, Brian Jake
Gilmore, Philip Chase Johnson, Megan Johnson, Jeremy Hopkins, Lindsey Beard, Pamela Johnson,
Roland Scott Beard, Janet Lea Hopkins, individually and as trustee for Matthew C. Hopkins, and
Beverly Kaye Gilmore.
The court determined that Vencie and Melba died in a common disaster and that, based on the
language in their wills, they intended to incorporate the statutory presumption of the Simultaneous
Death Act. Therefore, the court determined that paragraph 2.02 should apply to the distribution of
each estate. Further, the court declared that “the beneficiaries are to be awarded the amount
provided from each estate, to the extent the resources of the estate permit.”
COMMON DISASTER
In her first issue, Stephens argues that, because there is evidence of who died first, Melba and
Vencie did not die in a common disaster or under circumstances making it impossible to determine
who died first. Therefore, she argues, the trial court erred in concluding that they died in a common
disaster and the cash bequests provided for in paragraph 2.02 of each will were not effective.
Applicable Law
An executrix of a decedent’s estate may have a declaration of rights in respect to the estate to
determine questions of construction of the will. TEX. CIV. PRAC. & REM. CODE ANN. §
37.005(3)(West 2008). When reviewing the trial court’s legal conclusions, we evaluate them
independently and thus review the legal conclusions drawn from the facts solely to determine their
correctness. Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.-Dallas 1997, pet. denied) (en banc).
Analysis
Paragraph 2.02 provided for cash bequests to certain defendants if both Vencie and Melba died in a
common disaster or under circumstances making it impossible to determine which died first. The
evidence shows that Vencie and Melba did not die at the same time and it is possible to determine
that Melba died first. Stephens asserts the trial court’s conclusion of law that the Beards died in a
common disaster was erroneous.
The term “common disaster” has been defined to mean “[a]n event that causes two or more persons
with related property interests ... to die at very nearly the same time, with no way of determining
who died first.” BLACK’S LAW DICTIONARY 292 (8th ed. 2007). Ordinarily, cases discussing
common disasters involve accidents or natural disasters. See White v. Taylor, 155 Tex. 392, 386 S.W.2d
925, 925 (1956) (automobile accident); Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, 395 (1953)
(airplane accident); Males v. Sovereing Camp Woodmen of the World, Tex. Civ. App. 184, 70 S.W. 108, 108
(Fort Worth 1902, no writ) (storm). The word “common” can mean shared by two or more.
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